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Murder charges dropped against sergeant who shot 2 unarmed Iraqi boys

| Tuesday, Sept. 30, 2014, 11:18 p.m.

Murder charges against Sgt. 1st Class Michael Barbera in the 2007 shootings of two deaf, unarmed brothers in Iraq have been dropped — at least for now — but he will face court-martial trial on two lesser charges, the Army announced Tuesday.

As a result of an Article 32 preliminary hearing last spring at Joint Base Lewis-McChord near Tacoma, Wash., the hearing officer, Lt. Col. Charles N. Floyd, recommended in a report to superiors that Barbera face court-martial on a charge of non-premeditated murder in the death of Ahmad Khalid al-Timmimi, 15, and a charge of murder in the death of his brother, Abbas, 14, as they tended cattle on March 6, 2007, outside the village of As Sadah, Diyala Province.

Witnesses from Barbera's small-kill team unit testified at the hearing that after his older brother was shot to death, Abbas raised his hands before he, too, was shot by Barbera. The charge recommended in Ahmad's death reflected Floyd's belief that Barbera's alleged action was quick and in response to something he did or did not see while Abbas' death was deliberate and an alleged violation of Article 118.2 of the Uniform Code of Military Justice, which involves “intent to kill or inflict great bodily harm.”

Floyd recommended Barbera face court-martial on charges of obstruction of justice and threatening a witness in an alleged attempt to cover-up his actions that day.

The recommendation report went to the convening authority: the base commander at Lewis-McChord base and the head of Army I Corps. After reviewing Floyd's report, the Army decided to dismiss “without prejudice” the two charges of murder and proceed to court-martial on the two lesser charges on a date yet to be determined.

Lt. Col. Dennis R. “Swanny” Swanson, an Army I Corps spokesman, said Tuesday that a major factor in the decision to dismiss the murder charges was the current chaotic situation in Iraq, where Islamic State forces control large areas of the country. As a result, it is impossible for prosecutors and the defense counsel for Barbera to travel there to contact and obtain testimony from the boys' parents and other potential witnesses.

Swanson said the decision to drop the murder charges “without prejudice” means the murder charges could be refiled at another time.

Barbera is assigned to Joint Base Elmendorf-Richardson in Alaska; he is not in confinement.

His court-martial trial on the remaining charges will take place at Joint Base Lewis-McChord. No trial date has been set. If he is convicted of those charges, the maximum punishment is eight years in prison and a dishonorable discharge.

Tribune-Review investigative reporter Carl Prine traveled to Iraq in late 2011 and went to As Sadah village with two interpreters, where they spoke with the family of the slain brothers, other villagers and the father of their deaf cousin.

The cousin was traveling to assist the brothers in caring for the cattle when he was shot to death by members of Barbera's unit after they had fled the palm grove where the brothers were killed. No one has been charged in the death of the cousin, largely because he had a military holster strapped to his leg and appeared to members of the Army unit to be a combatant.

Family confirmed to Prine he had the holster but said it contained a small pair of pruning shears to cut grass for the cattle to eat.

Prine's reporting led to an eight-page special report in the Tribune-Review in 2012 titled “Rules of Engagement.” The project, which included online interactive animation of what occurred, has won numerous awards — including a national Military Editors and Reporters award. The special report led the Army to reopen Barbera's case, which commanders at his original base at the 82nd Airborne in Fort Bragg, N.C., did not choose to pursue.

Floyd, the prosecution team at McChord-Lewis and lead defense attorney David Coombs could not be reached for comment Tuesday.

Kenneth Katter, a medically retired Army sergeant who was among the members of the small-kill team recon squad to testify against Barbera, said he could understand the decision to dismiss the murder charges given the current situation in Iraq.

“I am disappointed ... because that's what the whole thing started over, the murders of those boys,” Katter, a former police officer in the Saginaw, Mich., area, said. “I'm hoping they'll prosecute him on something.”

Eugene Fidell, who teaches military justice at Yale University Law School, said federal law allows murder charges to be refiled against Barbera, even if he leaves the military. In that instance, the Department of Justice could proceed with the charges.

“No jeopardies are attached to this dismissal,” Fidell said. “This door could be opened again.”

Jim Wilhelm is investigations editor for Trib Total Media. Contact him at 412-320-7894 orjwilhelm@tribweb.com.

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